COMMON LEGAL QUESTIONS
ABOUT
FLOODPLAIN REGULATIONS
IN THE COURTS
2003 UPDATE
Prepared by Jon A. Kusler, Esq.
for the
Association of State Floodplain Managers
Preface
This summary was prepared for the Association of State Floodplain Managers (ASFPM) by Jon Kusler, Esq.,
Associate Director of the Association of State Wetland Managers. Preparation involved a review of the legal
literature on floodplain regulations as well as the last 15 years of federal and state case law concerning
floodplain regulations. It is based upon a larger paper with case law citations also prepared by Jon Kusler for the
Association: No Adverse Impact Floodplain Management and the Courts and Jon Kusler, Wetland Assessment
in the Courts, Association of State Wetland Managers, 2003. Detailed reviews of cases from the period 1960–
1990 were prepared by Kusler in an earlier document.
Acknowledgements
Edward A. Thomas, Esq. provided extensive review of this document. Funding was provided by The McKnight
Foundation and the ASFPM Foundation. Opinions expressed in the document are those of the authors and do not
necessarily reflect the view of the sponsoring organizations.
May 2004, Page 1 of 4
COMMON LEGAL QUESTIONS
Have courts continued to uphold the overall constitutionality of state, and local floodplain regulations?
Courts at all levels of government have broadly and repeatedly upheld the general validity of floodplain
regulations despite several U.S. Supreme Court cases which have held that hazard-related regulations might
be unconstitutional in certain circumstances. For example, the Supreme Court held that South Carolina beach
protection regulations which denied all economic use of lands (i.e., a coastal setback line) could be invalid as
applied to this specific property. It also held in an Oregon case that dedication requirements for a bike path in
a floodplain were unconstitutional because the regulatory conditions were not “roughly proportional” to
burdens on the public created by the commercial use.
Does general validity mean that regulations are valid for all properties?
No. A landowner may attack the constitutionality of regulations as applied to his or her property even where
regulations are valid in general. Regulator agencies need to be able to support the validity of the regulations
as applied to particular properties. However, the overall presumption of validity for regulations and a
presumption of correctness for regulatory agency information gathering and regulatory decisions helps the
regulatory agency meet its burden of proof. And, courts have broadly supported state and local floodplain
regulations as applied to particular properties. A court decision that regulations are unconstitutional as
applied to a specific property will not determine site-specific unconstitutionality as applied to other
properties.
Has judicial support for floodplain regulations as applied to particular properties weakened in recent
years?
No, courts continue to strongly uphold floodplain regulations. Courts have only held regulations invalid in a
few of the more than 125 appellate state and federal cases addressing floodplain regulations over the last
decade including many challenges to regulations as a taking of private property. For cases upholding
regulations, see, for example Beverly Bank v. Illinois Department of Transportation, 579 N.E.2d 815 (Ill.
1991) (Court held that Illinois legislature had the authority to prohibit the construction of new residences in
the 100-year floodway and that a taking claim was premature.). State of Wisconsin v. Outagamie County
Board of Adjustment, 532 N.W.2d 147 (Wis. App., 1995) (Court held that variance for a replacement of
fishing cottage in the floodway of the Wolf River was barred by county shoreland zoning ordinance.). Bonnie
Briar Syndicate, Inc. v. Town of Mamaroneck, et. al, 94 N.Y.2d 96 (N.Y., 1999) (Court rejected claim that
the rezoning of 150 acre golf course property important for flood storage from residential to solely
recreational use was a taking of private property.). Wyer v. Board of Environmental Protection, 747 A.2d 192
(Me. 2000) (Court held that denial of a variance under sand dune laws not a taking because property could be
used for parking, picnics, barbecues, and other recreational uses.)
But landowners are more often challenging regulations and courts are examining floodplain regulations with
greater care than several decades ago.
What are the most common challenges to regulations in the last fifteen years?
The most common have been challenges to highly restrictive regulations: floodway restrictions, coastal dune
and high hazard area restrictions, buffer and setback requirements, stringent requirements for variances, and
very tight nonconforming use regulations. Despite challenges, courts have broadly upheld these restrictions
against claims that they take private property without payment of just compensation, have been adopted to
serve invalid goals, are unreasonable (lack adequate nexus to goals), or discriminate.
May local governments regulate floodplains without express statutory authority to do so?
Yes. Courts have upheld local floodplain zoning regulations adopted as part of broader zoning. Courts have
also, in some cases, upheld local floodplain ordinances adopted pursuant to “home rule” powers. But this is
rarely an issue since states have broadly authorized local governments to adopt floodplain regulations.
May 2004, Page 2 of 4
May a local government adopt floodplain regulations which exceed state or federal (FEMA) minimum
standards.
Yes. Local governments regulations may exceed both state and federal regulations. There is no preemption
issue. The FEMA program encourages state and local regulations exceeding federal standards through the
Community Rating System. Courts have, in specific cases, sustained a variety of regulations exceeding
FEMA standards such as:
• Regulating activities consistent with the 500 year flood rather than the 100 year flood,
• Prohibiting residences in floodplains,
• Establishing more stringent floodway standards such as preventing activities which would cause any
substantial increase in flood heights,
• Establishing buffer and set back requirements for coastal development and development adjacent to
riverine floodplains,
• Establishing tight restrictions on the use of septic tank/soil absorption fields in floodplains,
• Establishing open space zoning for some floodplains, and
• Establishing tight restrictions on the rebuilding of nonconforming uses.
May states and local governments regulate some floodplains and not others?
Yes, typically states and local governments only regulate mapped floodplains.
Are federal, state, or local floodplain regulatory agency factual determinations (e.g., mapping of
floodways and flood fringe boundaries) presumed to be correct?
Yes. The burden is on landowners to prove their incorrectness. Courts overturn agency fact-finding only if it
finds that such fact-finding lacks “substantial evidence.” Courts are particularly likely to uphold factual
determinations of federal and state “expert” agencies. However, courts look more closely at the adequacy of
the information gathering where regulations have severe economic impact on specific properties.
How closely must floodplain regulatory standards (including conditions) be tailored to regulatory
goals?
Courts have broadly upheld floodplain and other resource protection regulations against challenges that they
lack reasonable nexus to regulatory goals. But, as indicated above, courts have required a stronger showing
of nexus where regulations have severe economic impact on property owners. They also, increasingly require
a showing that conditions attached to regulatory permits are “roughly proportional” to the impacts posed by
the proposed activity where dedication of lands to public use is involved.
Must a regulatory agency accept one mapping or other flood analysis method over another?
No, not unless the agencies regulations require the use of a particular method. Courts have afforded
regulatory agencies considerable discretion in deciding which scientific or engineering approach to accept in
fact-finding as long as the final decision is supported by “substantial” evidence. Also, courts have held that
regulatory agencies do not need to eliminate all uncertainties in fact-finding.
Does an agency need to follow the mapping, floodway delineation, or other technical requirements set
forth in its enabling statute or regulations?
Yes. Agencies must comply with statutory, administrative regulation and ordinance procedural requirements.
They must also apply the permitting criteria contained in statutes and regulations.
Are floodplain and floodway maps invalid if they contain some inaccuracies?
No. Courts have upheld maps with some inaccuracies, particularly if there are regulatory procedures
available for refining wetland map information on a case-by-case basis.
Can landowners be required to carry out floodplain delineations or determine the impacts of proposed
activities on flood elevations? Provide other types of floodplain assessment data?
Yes. Courts have held that regulatory agencies can shift a considerable portion of the assessment burden to
landowners and that the amount of information required from a landowner may vary depending upon the
issues and severity of impact posed by a specific permit. And, agencies can charge reasonable fees for
May 2004, Page 3 of 4
permitting. But, the burdens must be reasonable and the costs of such data gathering may be considered by
courts relevant to the overall reasonableness of regulations and whether a “taking” has occurred.
May a regulatory agency be liable for issuing a regulatory permit for a private activity which damages
other private property?
In some states, yes, particularly if the permitted activity results in substantial flood, erosion, or other physical
damage to other private property owners. However, some states specifically exempt state agencies and local
governments from liability for issuing permits.
Do local governments need to adopt comprehensive land use plans prior to adoption of floodplain
regulations?
Statutes authorizing local adoption of floodplain ordinances and byelaws do not require prior comprehensive
planning. However, many local zoning enabling acts require that other types of zoning regulations be in
accordance with a comprehensive plan. Courts have also endorsed comprehensive planning and regulatory
approaches as improving the rationality of regulations although they have also upheld regulations not
preceded by such planning in many instances.
Under what circumstances is a court most likely to hold that floodplain regulations “take” private
property?
Courts are likely to find a taking only where regulations deny all “reasonable” economic uses of entire
properties and where proposed activities will not have offsite “nuisance” impacts. Landowners are also more
likely to succeed in challenging regulations where the property owner purchased the land prior to adopt of the
regulations.
Are highly restrictive floodplain regulations including buffers and large lot sizes valid?
Courts have upheld highly restrictive floodplain regulations in many contexts, particularly where a proposed
activity may have nuisance impacts on other properties. However, courts have also held floodplain
regulations to be a “taking” without payment of compensation in a few cases (mostly older) where the
regulations denied all economic use of entire parcels of land and there was no showing of adverse impact on
other properties.
Would a no adverse impact performance standard incorporated in local or state regulations be
sustained by courts?
Yes. Courts are very likely to support this standard if it is fairly applied and if government agencies permit
some economic, conditional use for entire parcels of lands where regulations may otherwise prevent all
economic use of land. For example, courts are likely to support a requirement that landowners purchase flood
easements from other property owners if their proposed activities will damage other property owners.
How can a local government help avoid successful “taking” challenges?
Local governments can help avoid successful taking challenges in a variety of ways:
1. Adopt a no adverse impact floodplain overall performance standard which applies fairly and uniformly to
all properties.
2. Include special exception and variance provisions in regulations which allow the regulatory agency to
issue a permit where denial will deny a landowner all economic use of his or her entire parcel and the
proposed activity will not have nuisance impacts.
3. Adopt large lot zoning for floodplain areas which permits some economic use (e.g. residential use) on the
upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non floodplain parcels.
5. Reduce property taxes and sewer and water levees on regulated floodplains.
May 2004, Page 4 of 4